As the number of people being disenfranchised increases, the conduct classified as a felony expands, and research consistently shows that one who votes is less likely to reoffend, it is time to revisit both why and how Minnesota disenfranchises its citizens.

On November 6, 2012, millions of Americans will wake up ready to participate in what will undoubtedly be an epic day in history. We will stop at Starbucks or our local coffee shop before heading to the polls on our way into work to vote for the next president of the United States. We will take a long lunch break to vote on whether the Minnesota Constitution should be amended to prohibit same-sex couples from marrying. We will leave work early to cast a ballot for or against requiring voters at the next election to present photo identification in order to vote. We will go to the polls with newspapers under our arms and smart phones tucked in our pockets to pass the time, unsure of how long the lines will be, but sure that we will vote. We will stand next to fellow Americans who have come out to vote for the next state senator, judge, or president. We will see elderly men and women standing in line to vote next to young parents carrying children who will automatically have the right to vote when they turn 18. Sharing a common goal of making America a better place, people from many varied walks of life and political affiliations will show up at the polls to vote.

But on November 6, 2012, over 5 million Americans will not vote. Not because they don’t want to vote or don’t care to vote, but because they have been convicted of felonies and are prohibited from voting. Many of the 5 million Americans disqualified from voting have served their time and are working, paying taxes, and raising families. Riding the bus home from work or standing behind you in the grocery store, they are indistinguishable but for the fact that on November 6 they will not be able to vote on the most important decisions we make as a country.

Felony Disenfranchisement Laws

States vary greatly in their treatment of people with felony convictions. With the exception of Maine and Vermont, all states prevent felons from voting when they are physically incarcerated. Thirteen states prohibit felons from voting when they are incarcerated, but restore their right to vote when they are released from incarceration.1 Five states prohibit felons from voting when they are incarcerated or on parole but allow felons to vote if they are on probation or have completed all aspects of their punishment.2 That means if someone is convicted of a felony and serves no time or serves a short amount of time in jail (but not prison), his or her right to vote is restored upon release from jail. For those who do go to prison, their right to vote is restored upon completion of parole.

Eighteen states—including Minnesota—prevent felons from voting if they are incarcerated or on parole or probation.3 For Minnesotans, that means those convicted of low-level felony drug and property offenses are treated the same, for voting eligibility purposes, as those convicted of major felony offenses such as first-degree murder—even if those low-level offenders have not served a day in jail and were simply placed on probation.

Twelve states impose requirements more severe than Minnesota’s on felons seeking to vote, but the terms of their requirements vary.4 The common variable in those 12 states is that felons are prohibited from voting even after they have completed all other forms of their punishment and sentence. Some states with this most restrictive law distinguish between qualifying and disqualifying felonies (typically including violent felonies and excluding low-level felonies), or make recidivists ineligible to vote but do not disenfranchise people beyond their sentence or length of probation if it is their first felony. Other states mandate a certain waiting period after which a convicted felon can vote.

Minnesota does not distinguish based on the type of felony conviction and does not distinguish between repeat offenders and first-time felons. In Minnesota, if you are convicted of a felony—no matter what the charge or whether you’ve been charged before—you will be prohibited from voting until you have completed all aspects of your probation, prison sentence, or parole. With probation terms ranging anywhere from two years to 20 years, Minnesota excludes many of those convicted from voting for many years. For many low-level felons, Minnesota’s felony disenfranchisement law is among the most exclusive in the country.

Public Consequences

According to a recent Sentencing Project study,5 of all Americans convicted of a felony, only one out of four is barred from voting due to being incarcerated. The remaining 75 percent of disenfranchised Americans with felony convictions are living in our communities, working, raising kids, paying taxes, recovering, living alongside all of us. In Minnesota alone, an estimated 70,000 of our fellow residents cannot vote on November 6 because they have a felony conviction and are incarcerated, on parole or probation. They cannot participate in the biggest decisions we make as a nation, who will lead us and who will represent us.

The Minnesota legislature continues to create new felony laws that increase the number of people who are disenfranchised. In fact, so far this year, Minnesota has passed two new laws creating felonies out of conduct that was not previously considered felonious. At the same time, people who are disenfranchised—like the two mentioned in the accompanying sidebar—cannot express their disagreement with the policies being presented, because they have lost their right to vote. The people most affected by the laws are not given any meaningful way to change them, or to object.

Is it fair to tell someone she has to pay taxes based on a system adopted by officials who are not accountable to her at the ballot box? Can we expect someone to feel fully engaged and included when we don’t let him have a say? Should we expect someone to follow laws passed by people he can neither vote for nor against? In the United States, where wars have been fought and national movements have been started to ensure every citizen of age has the right to vote, excluding more than 5 million people from that right calls into question the very nature of our democracy. “The most telling indicator of citizenship in the United States is that ability to cast a vote,”6 says Desmond Meade, president of the Florida Rights Restoration Coalition. If that is true, what do we do to our citizenry when large percentages of communities are not allowed to cast a vote?

Disparate Impact

Many believe felony disenfranchisement became a popular idea when it was clear the Constitution granted the right to vote to all of its citizens, regardless of race, since this was a method of preventing many blacks from voting. There is strong evidence, arguably rock-solid proof, that the laws were in fact intended to target and ultimately eliminate the black vote.7 What is undisputed is the impact felony disenfranchisement has on African Americans. Nationally, 7.7 percent of the otherwise eligible African-American population is ineligible because of felony disenfranchisement, according to a 2010 study by The Sentencing Project.8 According to a report on felony disenfranchisement in Minnesota, in 2007, over 10 percent of the African-American population could not vote because of felony disenfranchisement and nearly 17 percent of African-American males could not vote because of felony disenfranchisement.9 Large percentages of entire communities are disenfranchised. How can we ask those same communities to embrace and believe in the legitimacy of laws that they had no role in passing? If we truly believe we operate within a correctional system based on rehabilitation and reform, how do we tell someone whom we have ostensibly rehabilitated that they, and many of their neighbors, do not have a voice? And what impact does their forced silence have on their future behavior?

Legislation and Reform

Last year, Representative John Conyers of Michigan introduced the Democratic Restoration Act, a bill that would limit felony disenfranchisement to those who are incarcerated at the time of the election. Although the bill is unlikely to pass this Congress, it has generated incredible support from law enforcement agencies, the American Probation and Parole Association, the American Correctional Association, and reentry professionals—all of whom recognize the importance of creating ties to and participating in the community when one is reentering.

Many state legislatures have recently passed legislation making it more difficult for people to vote by requiring voter identification, prohibiting early voting, and otherwise limiting the franchise. Over the last 20 years, however, many states have relaxed their felony disenfranchisement laws, making it easier for felons to regain their right to vote. While the laws are still stifling, they seem to be heading in the right direction. Minnesota is not among the states that have made felony disenfranchisement laws less oppressive. In fact, Minnesota has not changed its law since it began disenfranchising felons in 1857. As the number of people being disenfranchised increases, the conduct classified as a felony expands, and research consistently shows that one who votes is less likely to reoffend, it is time to revisit both why and how Minnesota disenfranchises its citizens.

What Now?

Minnesota’s answer may not be total inclusion of those convicted, as in Maine and Vermont, but distinction between those who are incarcerated and those who are living, working, and paying taxes alongside everyone else. Short of drawing the line between those who are incarcerated and those who are not, distinguishing between those convicted of violent versus nonviolent felonies, or first-time felons versus repeat offenders, is certainly better than treating all of these identically, as we now do. Voting is an essential right that gives people the feeling they are involved and they have a say in the way their society runs. It is the essence of being a citizen in our democratic society. The feeling of involvement fosters and perpetuates compliance, which increases the public safety. This is a benefit to all of us.

With less than 40 percent of the population likely to turn out on Election Day, we should be looking for ways to encourage, rather than prevent, voter participation. This November, exercise your right to vote—assuming you still have it—with a nod towards those who lost their right. That’s democracy.

Why We Should Care

Some may wonder why those of us without felonies should care: “We have not committed a crime,” they may say. “They are felons, after all.” One good reason to care is that felons who vote are less likely than those who don’t—or can’t—vote to reoffend. But many of the most important reasons why we should care whether felons are permitted to vote are found outside of the courtrooms, court files and conviction records, within the stories of those citizens with felony convictions who for all ostensible purposes are the same as the rest of us, who wish more than anything to vote and participate in the election process. These reasons are found in the stories of Brad Chalmers and Alan James.10

Brad Chalmers is 20 years old and a junior at the University of Minnesota. He is majoring in biology and hopes to work for a few years after school before getting his graduate degree in marine biology. Every day Brad goes to class and then works at two different jobs in order to pay for his tuition. Like a lot of students, Brad has taken out some private student loans that he will have to repay. Last year Brad was arrested for smoking and selling a small amount of marijuana to his best friend. In many states, Brad’s conduct would be a misdemeanor, but in Minnesota, this conduct is a low-level felony, and Brad was ultimately convicted of felony sale of marijuana. In order to avoid jail time and stay in school, Brad pled guilty and agreed to ten years of probation. Brad did not spend a day in jail. Because Minnesota prohibits felons from voting until after they have completed their probationary sentences, Brad won’t be able to vote in this election (the first time he is eligible). He won’t be able to vote in any election for the next ten years. Brad pays taxes, gets good grades, never served a day in jail, and plans to graduate from college in two years. But he will not able to vote until he is 30 years old.

Alan James is a 45-year-old father of two young girls. He has a high school education and a full-time job working as a janitor at the neighborhood high school. In a stroke of bad luck, Alan lost his job in 2008. Despite his job loss, Alan struggled for months to make his housing payments. Finally, as winter set in, Alan was still unable to find work and was completely unable to pay for housing. Homeless, broken, and freezing—and with few options—Alan entered a vacant warehouse in the middle of the winter to avoid the cold and to survive. As a result, Alan was arrested and charged with two felony counts for breaking and entering. To avoid jail time and two felony convictions, Alan pled guilty to one of the two charges and received a five-year probationary sentence.

Since that terrible winter of 2008, Alan has found full-time employment as a janitor, has gotten married, had twin daughters, and got a full-time job. He pays taxes, supports his daughters and wife, and works hard. As a result of his felony conviction, Alan is unable to vote in the elections this November and was unable to vote in 2008. This November will mark the second time Alan, an African-American man himself, will stay home and watch while millions of fellow Americans vote for the first African-American president.

Kassius Benson is the owner and lead counsel of the Law Offices of Kassius O. Benson, P.A. He has been a criminal defense attorney, both in Minnesota and the District of Columbia, since he graduated from the University of Minnesota Law School in 1996. Mr. Benson teaches at trial schools throughout the country.

Kaarin Nelson is an attorney at the Law Offices of Kassius O. Benson, P.A., representing clients facing criminal charges throughout Minnesota. She received her undergraduate degree from Boston College, her masters in Criminal Justice from Suffolk University, and her law degree from the University of St. Thomas in 2006. Her practice includes work as a criminal defense and trial lawyer.

7See, Alexander, Michelle, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York, The New Press, 2010) (discussing the “extraordinary percentage of black men in the United States that are legally barred from voting today” not overtly on the basis of race as in the past, but through “legalized discrimination” based upon status as a felon. Id. at 1-2; emphasizing that, “Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal … We have not ended racial caste in America, we have merely redesigned it.” Id. at 2; and arguing that “[f]elon disenfranchisement laws have been more effective in eliminating black voters in the age of mass incarceration than they were during Jim Crow.” Id. at 187-188). See also, Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The New York Press, 2002).

10 The stories of Brad and Alan involve the actual circumstances of individuals who faced charges in the criminal courts of Minnesota. Their names have been changed to respect their privacy as they move forward in their lives.